1. International Commercial Law Towards a Common Contract Law?
University of Oslo
Giuditta Cordero Moss, Ph.D., Dr.Juris
Prof.ass., International Commercial Law,
Oslo University

2. Vision: A common (European) contract law
Assumption:
Plurality of systems is confusing
Conflict rules are complicated
Domestic legal system are meant for domestic transactions
Vision:
An international system deriving from the parties’ own practice

3. Restatements To improve lex mercatoria’s weaknesses:
Difficult to determine
Not systematic
Too vague
1994, UNIDROIT Principles of International Commercial Contracts, 1995, PECL
Not a codification of existing principles
Systematic set of principles based on consensus among international academics

4. UNIDROIT Principles of International Commercial Contracts
Drafted in 1994 by the International Institute for the Unification of Private Law
Establish a balanced set of rules designed for use throughout the world
No binding effect
Persuasive authority

5. Principles of European Contract Law
”Commission on European Contract Law”
: PECL I,II and III:
Aim of PECL
Binding for all EU public contracts
Binding for private contracts, if referred to by parties
Long term: binding for all contracts

6. Commission’s Communication
Communication from the Commission to the Council and the European Parliament on European Contract Law – COM (2001) 398 final,
Requests comments on four alternatives:
Leave it to market forces
Through research establish general European principles
Improve coherence of existing European law
Enact a European code

7. The answers to the Communication
Each alternative has been supported and criticised
Working groups established to develop each alternative (especially 2 and 4)
In some academic circles focus on answer from:
Commission on European Contract Law and Study Group on a European Civil Code (PECL)

8. The Commission’s Action Plan
A more coherent European contract law – An action plan – COM (2003) 68 final, :
Continue sector-based approach
Increase coherence of existing European law (CFR)
Support development of European standard contracts (webpage)
Examine possibility of general measures, such as “an optional instrument”

9. Action plan’s effect Common Frame of Reference for Acquis Comunitaire
Does not cover general contract law
EU Standard contracts
Must be referred to
Do not solve interpretation problems
Optional Instrument
Does not help if vacuum
Does not totally exclude application of national law

10. Irrevocable Offer
Art. 2.4 Unidroit: Offer is not binding until accepted, but cannot be revoked if it indicates that it is irrevocable (by fixing a time for acceptance or otherwise). Art. 1.4: Principles cannot derogate from overriding mandatory rules of the governing law.
Art. 2:202, 1:103 PECL: Idem

11. Partial Impediment
Unidroit: Not regulated (art.1.6: gap filling by autonomous interpretation, 1.8 usages between the parties, generally acknowledged usages)
PECL: Not regulated (art.1:106(2): gapfilling by autonomous interpretation, otherwise governing law)

12. Amendments to a contract
Art. 1.3 Unidroit: Contract may be modified in accordance with its terms or by agreement. Art. 1.4: Principles cannot derogate from overriding mandatory rules of the governing law.
PECL: Idem

13. Application of Principles
As an integral part of the contract, if they have been incorporated by the parties
Not applicable if contrast with mandatory governing law (art. 1.4)
As an expression of trade uses, if they have not been incorporated
To corroborate governing law
Rarely as an independent source of law

14. Conclusion Common Contract Law as a tool towards unification?
Unification is not exhaustive
Even unified wording is interpreted in light of interpreter’s own legal background
Different legal systems will continue to survive long after unification (if any)